On a press conference held today, 3 March 2011, ICC Prosecutor Luis Moreno-Ocampo announced that Muammar Gaddafi and others shall be investigated for alleged crimes against humanity committed in Lybia.

There was a discussion going on on whether Moreno-Ocampo would be investigating war crimes or crimes against humanity and as it seems, the latter has prevailed. Although the existence of an armed conflict is not necessary to prove crimes against humanity, a systematic and widespread attack against the civilian population are the key elements to do so – both quite difficult to prove. Nevertheless, crimes against humanity do seem more fit to the Lybia situation (not sure if an armed conflict is what’s happening there).

For more on this topic, have a look at the interesting discussion in Opinio Juris.

The ICC Prosecutor has decided today to open an investigation on the Lybia situation in line with the powers conferred to him under Article 53 of the Rome Statute and Security Council Resolution 1970 (2011).

Moreno-Ocampo is due to hold a press conference tomorrow in The Hague to announce the investigation.

HRW has presented its 21th World Report. Critics are oriented to change current methods of dealing with repressive governments, encouraging States to exercise pressure in order to generate real changes.

Not sure if I agree with the terms he used “my jurisdiction”, “my Office”, but in any case I’m posting this press release for general information purposes…

Happy new year everyone 🙂

“First, let me be clear: I have not yet opened an investigation. But, if serious crimes under my jurisdiction are committed, I will do so. For instance, if as a consequence of Mr. Charles Blé Goudé’s speeches, there is massive violence, he could be prosecuted.

Secondly, if UN peacekeepers or UN forces are attacked, this could be prosecuted as a different crime.

I think African states play a critical role in this, to find a solution to the problem. But if no solution can be found and crimes are committed, African states could be willing to refer the case to my Office and also provide forces to arrest those individuals who commit the crimes in Côte d’Ivoire.

Therefore, violence is not an option. Those leaders who are planning violence will end up in the Hague”.

New Convention on Enforced Disappearance entered into force, but much remains to be done – UN expert body

Last 23th December, 2010, the UN Working Group on Enforced or Involuntary Disappearances welcomed the entry into force of the International Convention* for the Protection of All Persons from Enforced Disappearance. “The entry into force of the Convention is a new and important step in the right direction. But it is not enough,” warned the five independent experts.

“On this important occasion,” they said, “we urge States to make all possible efforts to prevent and eradicate the heinous practice of enforced disappearance and to bring to justice all those believed to be responsible for the crime; refrain from any act of intimidation or reprisals against those persons who contribute to the eradication of the practice; and take effective measures to realize the rights to truth, justice and reparation.”

Enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

“The Convention breaks new ground in the fight against the scourge of enforced disappearances,” the expert body said. “It includes for the first time in a treaty the right of any person not to be subjected to enforced disappearance. The Convention recognizes the right of all the persons affected by enforced disappearance to know the truth about the circumstances of this crime, the progress and results of the investigation and the fate of the disappeared person.”

States that ratify the Convention commit themselves to conduct investigations to locate the disappeared person, to prosecute those responsible and to ensure reparations for survivors and their families. “This is a momentous step, a day that has been looked forward to by many in all parts of the world, including families of those who have disappeared.”

“Despite this important step, we condemn the fact that enforced disappearances continue to occur all over the world,” the independent experts said. “As recent as our last session, the Working Group examined newly-submitted cases of enforced disappearances and information on previously accepted cases from more than 40 countries from all the regions of the world. We still see secret detention facilities, kidnappings and abductions by States agents against political dissenters and persons accused of terrorism, harassment against relatives of people disappeared, and widespread impunity.”

“We congratulate the 21 States** that have ratified the Convention and reiterate our call upon all Governments that have not ratified the Convention to do so as soon as possible, and to accept the competence of the Committee on Enforced Disappearances to receive and consider individual and inter-State communications of the Convention, when ratifying it,” the Working Group said.

How States abide by their obligations under the Convention will be monitored by a panel, to be known as the Committee on Enforced Disappearances. This independent and impartial treaty body will monitor implementation of the Convention and can receive complaints from or on behalf of victims when the national authorities fail to fulfill their obligations.

The Working Group was established by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. It endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated, with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group’s humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established. The Working Group continues to address cases of disappearances until they are resolved. The Working Group also provides assistance in the implementation by States of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance.

The Working Group is comprised of five independent experts from all regions of the world. The Chair-Rapporteur is Mr. Jeremy Sarkin (South Africa) and the other members are Mr. Ariel Dulitkzy (Argentina), Ms. Jasminka Dzumhur (Bosnia and Herzegovina), Mr. Osman El-Hajjé (Lebanon) and Mr. Olivier de Frouville (France).

It’s been more than one year from the historical decision of Judge San Martin, in which former President of Peru, Alberto Fujimori Fujimori was given a 25- year prison sentence after being found guilty on human rights charges related to killings and kidnappings carried out by a state death squad.

Today, former Argentine military ruler Jorge Videla was sentenced to life in prison for torture and murder.

In this way, Latin American courts are establishing important precedents by sentencing former Heads of State for the commission of crimes against humanity, reinforcing the exception of the principle of Functional Immunity for crimina juris gentium.

An evaluation of the status of international customary law on the question of jurisdictional immunity of Heads of State: